Regional Express Holdings Limited v Regional Express Pilots' Committee

[2010] FWA 9579

[2010] FWA 9579

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Regional Express Holdings Limited
v
Regional Express Pilots' Committee
(C2010/5116)

COMMISSIONER RAFFAELLI SYDNEY, 17 DECEMBER 2010

Regional Express Pilots’ Certified Agreement 2005 - pilot accommodation.

[1] On 7 October 2010, Regional Express Holdings Limited (Rex) made application for Fair Work Australia (FWA) to deal with a dispute it had with the Regional Express Pilots’ Committee (Rex Pilots’ Committee) and the Australian Federation of Air Pilots (AFAP).

[2] The dispute related to Rex’s proposal to use accommodation facilities located at the Australian Airline Pilot Academy (AAPA) in Wagga Wagga for pilots who, in the course of their employment, are absent on layover in Wagga Wagga.

[3] The Rex Pilots’ Committee has refused to agree to the use of AAPA accommodation facilities.

[4] It is not in dispute that, perforce of section 739 of the Fair Work Act 2009 (the Act) and the terms of the applicable agreement, the Regional Express Pilots’ Certified Agreement 2005 [AG843610] (the Agreement) and clause 34 Dispute Resolution Procedure of the Agreement that FWA can deal with the dispute, including by making a decision binding on the parties.

[5] Relevant provisions of the Agreement are as follows:

“56 ACCOMMODATION

56.1 When a pilot in the course of their employment is absent on layover from their base, they will be provided by the Employer with appropriate accommodation (as defined in clause 3.3 of this Agreement).

56.2 To the extent possible, a list of approved places of accommodation will be compiled on the basis of mutual consultation between the Employer and the RexPC. The company agrees to investigate complaints received in writing regarding accommodation within 7 working days.

6.3 A party proposing a change to the existing accommodation will notify the other party of the proposal. If no agreement is reached, the parties seeking the changes may refer the proposal to the Disputes Settlement Procedure for determination and in such circumstances the existing arrangements will continue until the matter is determined.

. . . ”

and

“3. DEFINITIONS

3.3 ‘Appropriate accommodation’ means accommodation which is, as a minimum, clean, quiet and free from factors which may reduce adequate rest and must provide a separate room incorporating en-suite bathroom facilities for each pilot, with air conditioning and or heating as appropriate to the area. Such accommodation will be assessed as per the most recent Dawson’s Hotel Guide Book or other guide as agreed by the RexPC at not less than a 3 star standard for non-capital cities and 4 star for capital cities. An initial assessment period shall apply as agreed.

. . . ”

[6] On 15 November, the Tribunal inspected the AAPA facilities and was accommodated overnight in a room that Rex wishes to utilise for the accommodation of its pilots. A hearing was held on 16 November 2010.

[7] At the hearing evidence was given by Mr Chris Hine, Rex’s General Manager, Flight Operations and Chief Pilot. He indicated that he used the accommodation facilities and the rooms were very clean, very tidy and free from noise. Although the size of the room is small, this does not inhibit a good and comfortable night’s sleep. Nor does the size of the bed (which is a standard single bed) hinder a good rest.

[8] He said that although AAPA is advertised on Dawson’s Accommodation Directory (see clause 3.3 above) he was unaware that any member of the general travelling public had ever utilised the facility. He agreed that AAPA was more a training facility than an accommodation establishment.

[9] He also indicated that the overnight stays for pilots in Wagga Wagga was generally for pilots coming in from Sydney or Melbourne after 8 p.m. and then signing on at about 6 a.m. the next morning. He estimated that a Sydney or Melbourne based pilot would probably overnight in Wagga Wagga once every 4 to 6 weeks.

[10] He also said that there were instances of pilots staying in Wagga Wagga for the purpose of relief of Wagga Wagga based pilots. In that case, pilots would stay longer than one night. Some pilots might be involved in over-nighting but would not necessarily come in and go out in the brief 8 p.m. to 6 a.m. situation described as the more typical situation in [9].

[11] Mr Trindade, who represented Rex, firstly submitted that jurisdiction was not in issue and the Tribunal was authorised to determine whether the accommodation being proposed by Rex at AAPA is appropriate accommodation for the purposes of the Agreement.

[12] He referred to the words of clause 3.3. Those words do not countenance that the accommodation is to be the best available or better than the current accommodation used. Nor should the Tribunal approach its task by determining whether the change proposed is a good idea or ill-conceived. It is not a case of drawing comparisons with other accommodation.

[13] The evidence was clear that the rooms are separate for each pilot and each have their own en-suite bathroom. They have heating and air-conditioning facilities. Dawson’s have assessed the accommodation at three and a half stars which meets the requirement of clause 3.3.

[14] It is also apparent that the rooms are extremely clean and quiet and are free from factors which may reduce adequate rest.

[15] In response to the objections of the pilots and AFAP, he relied on the evidence of Mr Hine as to the adequacy of the bed size. While agreeing that the rooms are smaller than most motel rooms they are not so small that they inhibit adequate rest.

[16] He also referred to the adequacy of access to pre-ordered and pre-prepared meals. The absence of alcohol at the facility is not generally relevant given statutory restrictions applicable to working pilots. Finally, he said that pilots had access to Rex motor vehicles if they wished to drive into Wagga Wagga for meals.

[17] Mr Cox, of the AFAP representing the pilots put that it was never envisaged in the Agreement that accommodation would be essentially dormitory-style. The facilities at AAPA are not commercial accommodation.

[18] The bed is inadequate for tall or heavy persons. The size of the room is inadequate.

[19] Rex did not consult with the pilots (as it normally does) concerning the accommodation, which was incorporated in the recently opened AAPA facility owned by Rex. If it had, the pilots would have expressed a view as to the room and bed size. It now seeks the pilots to agree or FWA to arbitrate in circumstances where if consultation had occurred, some necessary changes to the rooms might have been more easily made.

Conclusion

[20] I commence by stressing the need for the Tribunal to apply the terms of the Agreement. I agree with Mr Trindade that there is no obligation to provide accommodation that is the best available or is in a more interesting or entertaining part of town.

[21] In my view, the rooms planned to be allocated to pilots at AAPA generally meet the definitions set out in clause 3.3. The only matter of concern is whether the size of the bed and of the room are “factors which may reduce adequate rest”.

[22] With the exception of the more usual fly-in/fly-out circumstance (to which I will return later), I consider that the small size of the room is a factor which would reduce adequate rest. In these circumstances it is unacceptable that what might amount to extended periods of time should be spent in a room too small to have even a lounge chair and a sizeable bed. Being confined in the rooms at AAPA for periods of more than one night or for several hours in afternoon or morning periods could of themselves cause tiredness.

[23] I determine that AAPA is not appropriate accommodation in such circumstances.

[24] Different considerations apply to where pilots fly-in in the evening and fly-out early. The size of the room would not seem to have the impact that I described in [22]. However, the bed size may still be an issue.

[25] I was disadvantaged by the lack of evidence from pilots as to the adequacy of the beds. This is not surprising given that there has not, as yet, been any utilisation of the AAPA by pilots.

[26] Consequently, much of the competing views as to the appropriateness of accommodation for short stays is speculative.

[27] In the circumstances, I propose that a four month trial be undertaken by pilots. This would apply only to those circumstances where pilots are over-nighted (approximately 8 p.m. to 6 a.m.).

[28] At the conclusion of the trial the parties are to meet and discuss their respective positions in the light of pilot experience.

[29] Should the matter remain unresolved further deliberation by Fair Work Australia may be necessary to determine the outstanding issue.

COMMISSIONER

Appearances:

D. Trindade for Regional Express Holdings.

L. Cox for the Australian Federated Air Pilots Association

Hearing details:

2010
Sydney:
October 29.

Wagga Wagga
November 15 (inspections), 16.

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<Price code C, PR504950>